Daylight Robbery! The Legal and Illegal Use of Web Graphics

There was a young Web thief in Hershey,
Who thought she could count on our mercy,
In spite of the fact
She was caught in the act
And now has less coin in her purse.
— Scoop.net (used by permission)

TANSTAAFL (There Ain’t No Such Thing As A Free Lunch)
— Robert A. Heinlein

The issue of the legal usage of Web graphics, along with other materials such as code blocks, documents, and other Web design resources, has affected Web designers since the first few public sites began appearing in 1993. Every Website that appears on the Net â€“ currently well over two million, if memory serves â€“ has to grapple with this issue. Granted, the simplest thing to do is create all new and original Web graphics for any site, but that isn’t always an option. Plenty of commercial and personal Website creators out there can’t create graphics for themselves, and plenty of businesses don’t have access to graphics wizards who can create snazzy graphics for them (or don’t want to pay for their services). Besides, look at all the graphics freely available on the Net, for cryin’ out loud! All you gotta do is right-click ’em and save them to disk, right? Well, no. It isn’t that simple.

Legal and Illegal Graphics Use

…an overview of the legality of Web graphics

The critical issue involved in this whole debate is ownership â€“- who owns what graphic? When can a particular graphic be used? And under which circumstances? Naturally, there isn’t an easy or all-inclusive answer. The answer(s) boil down to copyright ownership (and the same information applies to any other Web-based creations, including code blocks, documents, and of course programs and executable files).

In the United States, all programs, graphics, linkware, music, lyrics, writing, fonts, and so forth are protected by basic copyright law (P.L. 94-553), passed in 1976. This includes redistribution rights: only the owner of a Web graphic, document, program etc. can allow his or her work to be reprinted or used elsewhere. The owner determines all terms and conditions of the distribution and redistribution. In other words, just because Fred gives me permission to use his cool graphic on my site doesn’t mean you can use it. Neither can I give you permission to use it. What’s Fred’s is Fred’s. He decides who uses his work. If our hypothetical Fred is a professional graphics designer, a Website owner, or for any other reason concerned about the theft and illegal use of his work, he will create a “Terms and Conditions of Use” document to cover all the legal bases. Normally he does not have to register his work with the U.S. Office of Copyright to be protected under the law, but if he anticipates ever having to go to court to protect his interests, he should register his work just in case.

All works should be marked with a copyright notice. For example, this work is noted by the following:

Need to register your work? Download the forms to copyright your work from the U.S. Copyright Office. The cost of copyrighting a work is currently $30. And if you don’t want to pay $30 per registration, there’s always the "poor man’s copyright protection" method. Print out a hard copy of your work, or store it on disk, and seal it in an envelope. Then mail it to yourself, via certified mail, return receipt requested. Do not open the envelope when you receive it; instead, store it, along with the receipt, in a safe place. Be sure to make a detailed list and/or a duplicate of whatever you put in the package, and store that along with the unopened, postmarked envelope. In the event that you have to prove ownership of the graphics (or anything else â€“ this applies to text works and other things as well), all of this provides credible evidence for the date of creation of your work. However, only a legal registration gives you the right to sue for copyright infringement. Warning: this applies only to United States law. Other countries’ laws differ.

As noted above, American copyright law differs significantly from those of other countries. Most Western European countries, along with Canada, Mexico, Japan, and Australia, are signatories of the Berne Convention of 1886 (the U.S. joined in 1989). A listing of Berne signatories is in the bibliography of this article; the listing also delineates some of the Berne Convention copyright provisions. Some are significantly different from American law. The 1994 GATT treaty extends copyright protections internationally (to all the GATT signatories, anyway), and provides protection for copyright infringement through the World Trade Organization. As of February 2000, the following countries have NO copyright agreements with the United States: Afghanistan, Bhutan, Ethiopia, Iran, Iraq, Nepal, Oman, San Marino, Tonga and Yemen. Most countries that didn’t sign the Berne Convention fall under the Universal Copyright Convention body of law. Remember, copyright violations in America fall under civil law â€“ in other words, cyberbanditos usually don’t get arrested, but they can (and sometimes do) get sued.

The Digital Millennium Act of 1998 significantly clarifies and extends American copyright law with regard to digital and electronic creations. This piece of legislation is a major addition to copyright law, with special pertinence to Internet and Web usage. You should definitely read up on it; several sources are listed below.

Details of Copyright Law

…key criteria for the determination of copyright and how this applies to Web materials

The actual legalities of copyright apply to Web materials through three main criteria:

fixation to a tangible media,

originality, and

minimal creativity.

Fixation means preserving the graphic to any "permanent" storage media, including diskette, CD-ROM, hard drive, paper, recording device, video camera, etc. This includes Web server storage. Originality is defined simply as the original content of the creation. Minimal creativity assesses the amount of creativity in a work. Telephone directory listings and ingredient lists in recipes, for example, are traditionally difficult to copyright, since they contain little if any original content. It’s hard to say where the line is drawn for graphics, but I’d assume that anything more complex than a simple polygon would fall under the copyright laws â€“ either you created it and own it, or you copied someone else’s work and are in violation.

Under certain circumstances, original material can be used under the "fair use" statutes. Fair use allows certain creations to be used in parodies/satires, news reports, reviews, and for educational and teaching purposes; this is often the loophole used by unscrupulous and/or ignorant cyberbanditos. While the idea seems relatively straightforward, in practice "fair use" can be quite slippery. Most institutions that deal with the "fair use" statutes in their daily course of affairs have written guidelines to explain what does and does not constitute fair use under the law. If you work for one of these institutions, you should make yourself aware of the guidelines; if you work for yourself, or you’re an amateur, you should err on the side of caution. Note that the "fair use" laws in the U.S. are different than those in other countries.

Who Owns What Copyright?

…an explanation of the basics of copyright ownership

You own anything you create, with the following exceptions:

1. If you create a graphic, code block, or the like as part of your job, it belongs to your employer.

2. If you contract to provide someone else with a graphic or other creation, that creation belongs to them under the terms of the contract. The same applies for freelance work done under specific contract to an employer or contractor, i.e. the Web designer who creates a graphic for your site under a specific contract transfers ownership to you. Such contracts can be simple verbal agreements (though such agreements can lead to arguments and even litigation) or written agreements that specify exactly what is created and who gets ownership.

If you own a creation, you can transfer ownership to someone else, with or without monetary compensation. It’s just as simple to allow someone to use your work without transferring ownership. "Sure, go ahead, use it" is good enough for the law, as long as it’s the owner who makes the statement. Again, usage rights aren’t transferable: if a graphics designer gives me a neato graphic for use on my site, I can’t legally let you use it without the owner’s consent. Original work created by employees for their employer is copyrighted for 95 years from original publication or 120 years from the date of creation (whichever occurs first).

A good example of an issue with copyrighted graphics can be found at the Canadian Flag Clip Art Gallery, a Canadian graphics site that discusses its experience with Canadian copyright law. The site owners found that their use of a Canadian flag graphic is legal in itself, but not if the graphic contains a boldfaced font to the side of the flag designating an official governmental agency or department. In this case, the Canadian government laid down particular restrictions on the use of the Canadian flag for public use. Most other commercial and corporate entities have their own restrictions on when their logos or originally created works can and cannot be used.

Many works are in the "public domain", which means that they’re freely available for use by anyone. Public domain is another slippery concept. The law defines anything not copyrighted as in the public domain, but don’t get too happy with this concept. Some people think that anything that appears on the Internet is automatically in the public domain, which is emphatically not the case. The R.I.G.H.T.S. Website reminds us that the concept of public domain

"[o]nly works with an expired copyright, works created by the government, or works specifically dedicated by the copyright holder as "public domain" [may be] considered public domain. NEVER assume something is in public domain. It is prudent to always assume something is protected by copyright."

Good words.

The concept of public domain rarely applies to anything on the Internet. Virtually all Net creations were made after 1977; and as the law states that the owner retains the rights to his work for the span of his life plus 70 years, nothing on the Net has had its copyright expire yet, and won’t for a long while. The main exceptions are works of literature that were already in the public domain (Shakespeare, the Bible, Lao Tzu, etc.) and have been converted into Web documents.

Ideas themselves cannot be copyrighted. They are classified as "intangible" and therefore cannot be protected. For example, say I decide to start producing a bunch of graphic illustrations of cats. I can’t register the idea of "cat graphics" as mine and mine alone, because that’s an intangible idea. Anyone can create graphics of cats. I can, however, copyright any of the graphics I create â€“ whether they’re scanned photos of my big orange kitty Buster, or abstract Picasso-esque doodles â€“ as mine. If I use a photo of the neighbor’s tabby, I need the neighbor’s permission to use the photo. If I find a graphic of a cat on the Web, I can’t modify it to "make it my own" without the permission of the graphic’s original owner.

What’s a Poor Web Designer to Do?

…how to legally dress up your site

Options abound for professionals and non-professionals alike. Assuming that you’re not a whiz at graphics design and can whip out your own copyright-protected graphics at the drop of a hat, there are plenty of other ways to legally dress up your drab Website. It not only matters what Web resources you use, but on what kind of site you use them.

If you’re creating a purely amateur, non-profit Website ("Hi! This is the Website for my cat Oliver. He loves visitors…"), then you should make a point to search through the plethora of free and almost-free graphics sites out there. Hundreds of generous graphic designers make their work available on the Web, free for the download. Often the designers will request a link to their site in return for the use of their work. Such material is called "linkware". It’s a small request and one that’s easily fulfilled.

The trick with some sites is to determine whether or not the sites themselves have the right to disseminate the works they display. The issue comes up frequently with fan sites of particular television shows or movies; sometimes these sites post screen shots and sound files taken from TV broadcasts in violation of copyright. Ask a Star Trek fan. Paramount, the owner of the Star Trek franchise, has taken steps to shut down some fan sites that use illicitly garnered Trek graphics and sound files. Other TV shows with large, active fan bases such as The X Files and South Park have experienced the same problems. While a fan site may provide graphics, sound files, script excerpts, and other goodies from television and movie broadcasts, those goodies may not be theirs to disseminate. If you decide to use material from these sites, you may well be in violation right along with the site owners. I’m aware that some owners don’t actively pursue copyright violations on legally owned material. That doesn’t mean it’s right to use their material.

There’s a similar issue with sites that compile collections of Web graphics, sound files, and so forth from around the Internet. Sometimes these sites ensure that the materials they make available are legitimately free for dissemination; sometimes they don’t. It’s your responsibility to make sure that the graphics you "borrow" from these sites are provided with the owners’ permission. If the site doesn’t say anything about the legalities of their collections, then it’s a safe bet to assume that at least some of the graphics and materials available on the site are not legally theirs to provide. Even if you thought you were using freely provided material, you could still be held liable for copyright infringement.

So how do you know who’s reputable and who isn’t? Well, the short answer is: you don’t. There are some generally acknowledged sites out there such as Art Today and Barry’s Clipart Server that are known to be on the up-and-up, though these certainly aren’t the only two. Another good source of free art is sites maintained by individual artists, who display and provide their own work, and only their work, for public use. One site I like is Digital Blasphemy â€“ the artist, Ryan Bliss, provides some of his artwork free of charge for personal use, and asks you to join his site with a paid membership for access to the rest of his catalog. You won’t see any of Ryan’s work on my Website, but if you come over to my house, you might see one of his works on my PC desktop. Personal use, you’ll recall. In all cases, read â€“- don’t skim -â€“ the terms of usage for each site. Some sites give you carte blanche to do what you will with the images: well and good. Others limit your usage, often warning you not to alter the images, or give you permission to use the images only on non-commercial or personal pages, etc.

Non-profit sites usually don’t run into serious copyright problems simply because it isn’t worth the copyright owners’ time to pursue the issue. Paramount could spend all day every day tracking down every Trek fan site out there and trying to get the owners to purge their sites or pay royalties, but it isn’t worth their time. However, a commercial site is a different issue altogether. Commercial Websites are much more stringently monitored and targeted for copyright investigations, for the simple reason that these sites are "for-profit". Profit-making sites are watched much more closely, and infringements are much more likely to be pursued by owners or their lawyers.

The problem for commercial Websites is made more complex by the fact that these sites are going to eventually need more sophisticated graphics and other Web materials than those normally available for unlimited use. It’s okay to use freely disseminated clip art and basic JavaScript freebies on an amateur site (note that many of these freebies come with terms and conditions that you should honor), but in most cases a commercial operation is going to want more sophisticated and specifically designed materials for their online presence. Also, as many freeware and linkware distributors don’t allow their work to be used commercially, commercial Web designers should be twice as careful about checking the legalities of anything they “borrow” from Websites to be used on a business or for-profit site. To get the more uptown Web materials they need, most commercial site designers either end up creating their own graphics and code blocks etc., or contract them out.

Whether you’re an amateur or a paid professional, good advice comes to you from Design Expertise, a Web design firm:

"The most logical solutions come down to two choices. Make your own [graphics]. Or buy them from a pro. There are other choices of course, ones that compromise one’s online integrity and challenge the often unspoken ethical code of Web designers. Simply, ‘Thou shalt not steal!’ …Credit needs to be given where credit is due."

Technicalities and Miscellany

…definitions and explanations

Altering Graphics

Brushes are .ABR, .PCX, .TEX, and other files that act as filters or plug-ins within graphics creation software. Brushes usually generate textures, colors, opacities, and other such effects. It is still a violation of copyright law to alter a copyrighted graphic with a brush and call it an original work. For example, I couldn’t use a brush to add a Hitler mustache to a copyrighted photo of George W. Bush, or devil horns to a photo of Bill Clinton, and pass it off as my own. Nor could I alter a background graphic to give it a different texture and color and then claim it as my own. Note that, naturally, the laws that cover free speech apply to some circumstances, such as the photo alterations mentioned above. If I posted such altered photos on my site as part of a satirical work or political commentary, I would be safely within the parameters of the law, though arguably not within the boundaries of good taste. Violations of taste are not against the law.

Nozzles or tubes are graphics program plug-ins that add predesigned (.RIF or .TUB) images to a pre-existing graphic. These images fall under the same guidelines as any other images. If you buy a nozzle from Adobe for use in their Photoshop program, it’s relatively safe to assume that you’ve bought the rights to use the images in your own graphics. If you download a free nozzle from Fastbuck Freddie’s Free Nozzle Site, you may be in violation if you use the images in your own graphics.

Scanned images are usually photographs or text blocks scanned into Web graphic form by use of a scanner. It’s okay to scan the pictures you took of Niagara Falls for use on your home page. It’s not okay to scan a postcard photo and use it. Neither can you use a "still" from a TV or movie as an illustration on your Web site without permission from the studio or creator. I know, tell that to all the aforementioned Star Trek fan sites out there. Most of them are using something that belongs to Paramount without permission â€“ the fact that Paramount may ignore the material on these sites doesn’t change the fact that the material is used illegally.

Bandwidth Piracy

Bandwidth piracy is an even more egregious type of theft. Bandwidth thieves not only post illicit graphics on their Websites, they don’t even bother to download the graphics and store them on their own sites. Instead, they simply write a link that loads the graphic onto their site directly from the owner’s server, thus purloining the graphic for their own use but making the owner bear the cost of storing it. Sort of like if I taped into your television cable supply and watched TV at your expense. Slimy. Purists will notice two examples of this on my own site, Troubleshooting and Resource Guide to Windows 9x. In both cases, the author has specified that he prefers users like myself to link directly to their sites, as they expect to change the graphics in the near future.

Watermarks

Many graphics artists use watermark technology to mark their creations as their own. This doesn’t stop them from being stolen, but it makes it easier to sic the lawyers onto the banditos when, or rather, if, the artist comes across an instance of his work being used without permission. Another technique for baffling the banditos is to use a JavaScript protocol to disable the right mouse button, thereby denying access to the "Save Image As" menu item. This keeps the amateurs from scamming images, but not anyone with any real technical know-how. Often copyrighted graphics are not marked as such, but are posted with some sort of README file. Usually the terms and conditions of use are delineated there. But even if you do find tantalizing Web graphics unaccompanied by any copyright information whatsoever, you don’t have automatic license to download! In this case, you should contact the Webmaster, usually through email, to inquire about graphics availability and terms of use. Remember, even if you crib a graphic from a site and give credit to the owner, that isn’t enough to put you in the clear. Unless you have permission from the owner, even a simple acknowledgement on your site that "Michael Tuck made this graphic; it isn’t mine" isn’t enough.

Legal Recourses

…what happens when someone violates your copyright (or vice versa)?

If your site uses Web graphics or other materials illegally, the first thing you’re likely to receive is a "cease and desist" letter. Copies will probably be sent to your ISP and/or Website host. Commercial designers, it shouldn’t be hard for you to imagine your firm’s reaction to such a letter. If the letter is done properly, it will include specific details about:

where the copyrighted work is located online,

the date it was created and/or first published, and

if registered, its copyright registration number.

Specific details about the infringement violation will be provided, including all pertinent links and file names. The letter will ask for the immediate removal of the copyrighted work, and will give a specified time period or deadline for the work’s removal. If sent by surface mail, it will probably be a certified letter. Naturally, if the copyrighted work is not removed (or a feed paid, or whatever the owner deems appropriate), then further consequences may ensue.

Web designers and those who are interested in the issue of fair recompense for copyrighted works have formed numerous organizations and Websites. Many of them are linked in this article’s bibliography. One organization of note is Grey Day, which sponsors an annual "Grey Day" for the Web every October 1st. According to the organization’s site description, participating Websites replace their home pages with specially designed ‘grey’ pages "as a statement of global support and fellowship with the artists, writers, musicians and programmers of the World Wide Web." The idea is to protest against copyright infringements, online plagarism, and bandwidth piracy, and to show how dull and grey the Web would be without graphics.

Next week, in the second part of this article, we’ll take a quick look at the legal haranguing that began over the humble .GIF format. It started in 1987 and isn’t resolved yet. Meanwhile, every Web designer who uses GIFs in their work may be affected. Stay tuned!